BHAGWAN MAHTO AND ANOTHER Vs. BAL KARAN CHAMAR AND OTHERS

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit filed in the representative capacity under Order 1 Rule 8 of the Code of Civil Procedure (hereinafter referred to as the Code) for a declaration that the disputed plot no. 210 was a Ghairmazarua Am land and has been wrongly recorded as Ghairmazarua Malik in the record of rights during the last revisional survey. According to the plaintiffs, the villagers were using the same for various purposes and have acquired a right of easement over the same. The plaintiffs also alleged that in collusion with the Circle Officer and the Karamchari, defendant nos. 1 and 2 took settlement of the disputed land, which the State of Bihar (defendant no. 3) had no right to settle. After the settlement, a proceeding under Sec. 147 of the Code of Criminal Procedure was started, which was decided in favour of the defendants 1 and 2 and, thereafter, the present suit was filed in which the State of Bihar was impleaded as defendant no. 3. Defendants 1 and 2 filed a written statement and contested the suit. Their case was that the land was recorded correctly as Ghairmazarua Malik and the plaintiffs or the public had no right in the same. They also alleged that the suit was not maintainable as no notice under Sec. 80 of the Code was served on the State of Bihar. Defendant no 3, the State of Bihar, filed no written statement, nor contested the suit.

(2.) The trial court found that the land was Ghairmazarua Malik and not Ghairmazarua Am land, as alleged by the plaintiffs, and, therefore, the State of Bihar was entitled to settle the same. It also found that no notice under Sec. 80 of the Code having been served on the State of Bihar, the suit was not maintainable.

(3.) On appeal by the plaintiffs, the lower appellate court also came to the conclusion that the suit was bad for non -service of notice under Sec. 80 of the Code and on that score it dismissed the appeal. It did not go into other questions as this point was sufficient to dispose of the appeal. Thereafter the present appeal has been filed.